U.S. v. Rich

• Decision Date: 08 May 1978
• Docket Number: No. 77-2586,77-2586
• Citation: 580 F.2d 929
• Parties: UNITED STATES of America, Appellee, v. Donald Wayne RICH a/k/a, Lyle Lunceford, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 929

580 F.2d 929

UNITED STATES of America, Appellee, v. Donald Wayne RICH a/k/a, Lyle Lunceford, Appellant.

No. 77-2586.

United States Court of Appeals Ninth Circuit.

May 8, 1978.

Rehearing and Rehearing En Banc Denied Aug. 25, 1978.

J. Adam Moore (argued), of Dobbs, Moore & Kirkevold, Yakima, Wash., for appellant.

Robert S. Linnell, Asst. U. S. Atty. (argued), Spokane, Wash., for appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before MERRILL and ELY, Circuit Judges, and ORRICK, ^* District Judge.

ELY, Circuit Judge:

In a jury trial, the appellant, Rich, whose real name is Lyle E. Lunceford, was convicted of bank robbery and of assaulting a person or putting into jeopardy the life of a person by the use of a dangerous weapon in the course of committing that robbery. 18 U.S.C. § 2113(d) (1976). He was sentenced to prison for a term of twenty-five years.

The appellant filed a pretrial motion to suppress evidence discovered in searches of a motel room and his apartment and to suppress his incriminating statements that he alleged to be fruits of the searches. The District Court denied the motion. Appellant then filed a motion for a lineup, which was denied, although a lineup was subsequently held pursuant to an agreement of counsel. The lineup later served as the basis for appellant's motion to suppress an in-court identification, and appellant joined in a motion of a codefendant, his brother Robert Lunceford, to depose the government witnesses who had viewed the lineup. Appellant also filed a motion In limine to prevent the prosecution from referring to his alias on the ground that such reference was prejudicial and irrelevant. All of these motions were denied.

Here, the appellant presents seven issues: (1) that he was denied equal access to the lineup identification witnesses; (2) that there was insufficient evidence that a gun was used in the robbery; (3) that the pretrial photographic display and lineup were impermissibly suggestive; (4) that motions for a mistrial and new trial should have been granted because of a surprise identification witness, a courtroom outburst of Robert Lunceford, and prosecutorial misconduct; (5) that his admissions should have been suppressed; (6) that "negative hearsay" was improperly admitted at trial; and (7) that evidence found in a motel room was improperly admitted. We affirm.

FACTS

The prosecution presented substantial evidence indicating that appellant, along with another person, robbed the Seattle-First National Bank in Walla Walla, Washington, on February 28, 1977. An eyewitness observed appellant's automobile stop in an alley behind the bank, at which time a man with a sling on his arm alighted from the vehicle and entered the bank. At approximately the same time, a man fitting the above description robbed the bank. Janice Grassi, the bank teller who surrendered the money to the robber, identified appellant as the culprit. Several other witnesses also identified the appellant.

Shortly after the robbery, a local police officer observed appellant while he was riding in his car as a passenger. One Peterson, the owner of a Walla Walla motel, testified that soon after the robbery appellant registered at the motel under an assumed name, writing on the registration card the license number assigned to his automobile. The following morning, March 1st, Peterson's wife found the door to appellant's rented room "wide open" and noticed a wine bottle in the room. Having heard news reports of the robbery, she telephoned the police, who then searched the room. Later, agents of the Federal Bureau of Investigation (FBI) identified appellant's fingerprints on the wine bottle.

Appellant's vehicle was spotted in Lewiston, Idaho, on the afternoon of March 1st. Following a period of surveillance, appellant, the driver, was arrested. Robert Lunceford was a passenger in the automobile.

An FBI agent interviewed appellant at the Lewiston jail on March 2nd. Appellant told the agent that his name was Rich, that he had not been in Walla Walla on February 28th, and that he had frequented a Lewiston tavern that afternoon. He also stated that one Dale Olson had borrowed his car on the morning of February 28th.

On March 9th, following appellant's removal to the Eastern District of Washington, FBI agent Harris interviewed appellant, who at that time acknowledged his true identity. Later on the same day, pursuant to appellant's request, Harris again met with appellant. Although refusing to sign a waiver-of-rights form, appellant indicated that he wished to make a statement. He then explained that he and Dale Olson had robbed the bank and that his brother was not involved. Appellant testified at trial that Harris had induced this admission by telling him, the appellant, that the authorities had proof that he had robbed the bank, as well as some evidence that he had committed other crimes, and that his failure to cooperate would result in a prison sentence for his brother.

DISCUSSION

I. Access to Witnesses

Counsel for appellant attended the post-indictment pretrial lineup, in accordance with the right guaranteed an accused by the sixth and fourteenth amendments. United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Each witness, after viewing the lineup, was interviewed by an FBI agent in an adjoining room. The authorities excluded appellant's counsel from these sessions. During the interviews the agent advised the witnesses that they were not required to discuss the case with the defendants or their attorneys. Thereafter certain government witnesses so declined to talk with defense counsel. Appellant then sought to depose the witnesses, but the District Court denied his motion for depositions. Appellant now contends that the combination of events denied him equal pretrial access to witnesses in derogation of his rights to due process, effective assistance of counsel, and confrontation of witnesses.

Initially, we note that the absence of appellant's counsel at the post-lineup interviews did not constitute a denial of due process or of a right of access to witnesses. In Doss v. United States, 431 F.2d 601, 603 (9th Cir. 1970), we held that an accused does not have a right to be present during conversations between prosecuting authorities and witnesses held during or after a lineup.

Likewise, after reviewing the other circumstances of this case, we do not perceive a denial of appellant's access to witnesses. First, the refusal of the trial court to order depositions did not impermissibly interfere with appellant's access to witnesses. In criminal cases depositions are proper only in the very limited circumstances prescribed by Fed.R.Crim.P. 15 and 18 U.S.C. § 3503(a) (1976). Motions under section 3503(a) are considered under the same legal standard as Rule 15 motions. United States v. Singleton, 460 F.2d 1148, 1154 (2d Cir. 1972), Cert. denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973); H.R.Rep. No. 91-1549, 91st Cong., 2d Sess. 48-49, Reprinted in (1970) U.S.Code Cong. & Admin.News pp. 4007, 4025. Rule 15 permits the taking of a deposition "(w)henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial." In criminal cases, therefore, unlike civil cases, depositions are not allowed merely for the purpose of discovery. A defendant may depose a witness only if the witness may be unable to attend trial. See, e. g., In re United States, 348 F.2d 624, 626 (1st Cir. 1965). In addition, the rule contemplates a party taking the deposition of only his own witness, ¹ a requirement that comports with the purpose of preserving testimony.

Appellant, as the movant, did not allege or show the prospective unavailability of the witnesses at trial. Rather, he apparently sought depositions for their value as discovery. Thus, the denial of the motion to depose was well within the discretion of the District Court, if not compelled by the rule itself. See United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976).

A second and more important issue concerns the FBI agent's advice to witnesses that they need not confer with defense counsel. The facts of this case, however, do not demonstrate that the Government improperly influenced its witnesses. Appellant concedes that the government witnesses were not prohibited from discussing the case with defense counsel. It is manifest from the record that the witnesses were told and understood that they had the option to discuss the case with appellant's counsel.

In a similar case, United States v. Parker, 549 F.2d 1217 (9th Cir.), Cert. denied, 430 U.S. 971, 97 S.Ct. 1659, 52 L.Ed.2d 365 (1977), we held that a prosecutor's reasonable request did not impermissibly limit appellant's access to the witnesses. There, the prosecutor had asked witnesses not to talk with defense counsel on the day that he intended to reinterview them. Id. at 1223.

Our present decision should not be interpreted as approving any governmental conduct that has the purpose or effect of discouraging witnesses from cooperating with the counsel of an accused. Although the circumstances of this case cannot support a charge of denial of access to witnesses, we recognize that abuses can easily result when officials elect to inform potential witnesses of their right not to speak with defense counsel. An accused and his counsel have rights of access to potential witnesses that are no less than the accessibility to the potential prosecutors and their investigatory agents. It is imperative that prosecutors and other officials maintain a posture of strict neutrality when advising witnesses of their duties and rights. Their role as public servants and as protectors of the integrity of the judicial process permits nothing less.

II. Use of Dangerous Weapon

The indictment charged appellant, under...